Abbs v. Redmond

• Citation: 64 Idaho 369,132 P.2d 1044
• Decision Date: 06 January 1943
• Docket Number: 7030
• Parties: WILLIAM S. ABBS, Appellant, v. WILL W. REDMOND and WILL REDMOND, JR., Respondents
• Court: United States State Supreme Court of Idaho

132 P.2d 1044

64 Idaho 369

WILLIAM S. ABBS, Appellant, v. WILL W. REDMOND and WILL REDMOND, JR., Respondents

No. 7030

Supreme Court of Idaho

January 6, 1943

Rehearing denied February 1, 1943.

AUTOMOBILES-TORT LIABILITY OF OWNER-CONSENT OF OWNER-PRESUMPTION-STATUTES CONSTRUCTION OF-TRIAL-INSTRUCTIONS.

1. The statute governing driving without owner's consent, and providing that consent shall not be presumed or implied because of previous consent, should be construed as a whole as defining a misdemeanor, and as not applicable in civil action for damages suffered in automobile collision. (I.C.A sec. 48-131.)

2. In action arising out of collision with automobile driven by automobile owner's 14-year-old son, evidence, that, on day of the accident, son had been given permission to take automobile during day and that night took it without saying anything to parents, made jury question on whether consent had been given within meaning of statute imposing liability and instruction that jury could not infer consent from previous permission was erroneous. (I.C.A., secs. 48-131, 48-903.)

3. In action arising out of collision with automobile driven by owner's 14-year-old son, erroneous instruction that jury could not infer consent to drive automobile from previous permission was prejudicial and demanded reversal of judgment and granting of new trial. (I.C.A., secs. 48-131, 48-903.)

4. In action arising out of automobile collision, if plaintiff desired elaboration of instruction on stopping automobile in street, he should have asked for it.

5. Where clerk's transcript did not conform to court rule requiring name of proceeding set forth to appear in particular corner of each page, costs for the transcript would not be assessed against respondents. (Court Rule 19.)

Rehearing denied February 1, 1943.

Appeal from the District Court of the Eighth Judicial District, in and for Kootenai County. Honorable Ed. S. Elder, District Judge.

Action to recover damages resulting from automobile accident. Verdict for defendants. Reversed.

Reversed and remanded.

E. V. Boughton for appellant.

Cites no authorities.

Whitla & Knudson for respondents.

The trial court may grant a new trial--but there must be legal grounds or just reason for so doing. (Baillie v. City of Wallace, 22 Idaho 702; Watt v. Stanfield, 36 Idaho 371; Seamons v. Davis, 34 Idaho 393.)

The trial court should instruct the jury regarding legal principles applicable to evidence admitted on issues made by the pleadings. (Nordquist v. W. A. Simons Co., 54 Idaho 21.)

The question of contributory negligence is for the jury. ( Allen v. Oregon Short Line R. Co., 60 Idaho 267.)

GIVENS, J. Holden, C. J., Ailshie and Budge, JJ., and Johnson, D.J., concur.

OPINION

GIVENS, J.

Plaintiff brought this action to recover damages claimed to have arisen out of an automobile accident, the facts concerning which are as follows:

November 15, 1940, at about 11:30 p. m., the plaintiff, then 42 years old, accompanied by his son and three other boys, was driving a 1929 Studebaker sedan north on Fourth Street in the city of Coeur d'Alene. The night was very foggy and the road very slippery. The respondent Will Redmond, Jr., a minor 14 years of age, having no driver's license, was driving a Terraplane sedan owned by his father, the respondent Will W. Redmond, north on the same street. Will, Jr., was accompanied by four schoolmates. He claimed he did not see the car being driven by appellant until it was only twenty or twenty-five feet ahead of him and was unable to "get around it"; the car he was driving crashed into the rear end of appellant's car, injuring appellant. Appellant brought this action against Will and his father for $ 84.50 medical bills, $ 125 damages to his automobile, $ 500 for further estimated and necessary medical and surgical expenses, and $ 10,000 general damages. The jury returned a verdict in favor of respondents, and appellant appeals, urging the court erred in failing to grant a new trial, that the court erred in giving certain instructions, and that adjournment during the trial for nearly a week resulted in prejudice to the appellant.

Under Sec. 48-903, I. C. A. ^[1] the owner of an automobile who permits a minor under 16 years of age to drive his car is liable with such minor for any damage caused by the negligence of the minor in driving the automobile.

As to whether or not the owner gave his consent in this case, the jury was instructed as follows:

"Instruction No. 13. You are further instructed that it is the law of this state that the consent of the owner of a vehicle to its taking or driving shall not, in any case, be presumed or implied because of such owner's consent on a previous occasion to the taking or driving of such vehicle by the same or a different person. So in this case even if you find that the defendant Will W. Redmond, Sr., permitted his son to drive his car on other occasions you cannot, from such fact, infer or presume that he permitted his son to drive it on the occasion of the accident. The burden is upon the plaintiff to prove that the father's permission and consent was knowingly given to use the car on the particular occasion of the accident and unless the plaintiff so establishes such fact he cannot recover from the defendant Will W. Redmond, Sr."

Objection was made to this instruction "because it is not a correct statement of the law." Respondents counter with the statement that "this instruction was taken almost verbatim from Sec. 48-131, I. C. A.," which reads:

"48-131. Driving vehicle without owner's consent.--Any person who shall drive a vehicle, not his own, without the consent of the owner thereof, and with intent temporarily to deprive said owner of his possession of such vehicle, without intent to steal the same, shall be guilty of a misdemeanor. The consent of the owner of a vehicle to its taking or driving shall not in any case be presumed or implied because of such owner's consent on a previous occasion to the taking or driving of such vehicle by the same or a different person. Any person who assists in, or is a party or accessory to or an accomplice in any such unauthorized taking or driving shall also be guilty of a misdemeanor."

This statute should be construed as a whole. As stated in Boise-Payette Co. v. School Dist. No. 1, 46 Idaho 403, 268 P. 26, "No one provision of constitution or statute should be separated from all others, and considered alone." The statute when read as a whole defines a misdemeanor--that of driving a vehicle without the owner's consent, and has no application herein.

Mr. and Mrs. Redmond and Will testified Will did not have permission to take the car the evening of the accident. The evidence, however, indicated that at noon of the day of the accident his mother had given him consent to take the car in order that he might take his father's lunch to him and not be late to school. After school he had gone skating with some friends, taking them in his father's car. On the night in question he apparently took the car without having said anything about it to either his father or mother. Will further testified that he was not in the habit of taking the car without permission, although he had taken it out several times in the afternoon without permission, and this was the first time he had taken it out after dark. Mr. and Mrs. Redmond and a Mr. and Mrs. Mead, who were guests at the Redmond home on the evening in question, testified that during the evening (at about eight o'clock) Mr. Redmond stepped out on the porch and noticed the car was gone, at which time he asked Mrs. Redmond if she had given Will permission to take it; her answer was that she had not. Mr. and Mrs. Redmond displayed some concern that Will had taken the car, and Mr. Mead offered to get his car and take Mr. Redmond out to look for Will. This offer was not accepted although Mr. Redmond admitted "there would be only one idea that I would have where he had gone and that would be he had gone skating" at one of two places.

Under these circumstances, it was for the jury to determine whether consent had been given within the meaning of the statute, and the court therefore erred in giving instruction 13. Such was the holding in (Christiansen v. Schenkenberg, 204 Wis. 323, 236 N.W. 109, where the owner of the car testified he had forbidden use of the car to his nephew Richard, and where other witnesses testified Richard customarily and frequently drove the car, the court saying in part:

"It is contended by the respondent that this continued and customary use of the car by Richard gave rise to a permissible inference that such use was by and with the consent of Kratz. In this we concur. If there were no other evidence in the case, the reasonable inference to be drawn from this persistent use of the car by Richard would be that such use was by and with the consent of Kratz. Conceding that these circumstances justify the inference of consent, the positive testimony to establish a contrary conclusion cannot destroy the probative force of such circumstances. Such evidence might overcome them, might outweigh them, but it cannot take them out of the case. No matter what evidence is placed on the other side of the scales, this evidence remains, and all of the evidence...